Appropriate(d) MomentsRichard ChusedARTICLE

INTRODUCTION

[Q]

uietly reading a book by a window in your apartment isn’t necessarily a “private” act. Many living in densely packed locations like Manhattan inevitably wonder whether eyes peering through telescopes or watching digital camera screens find them, linger for a time, capture images or generate fantasies about who and what they are.1 That appropriation reality popped into public view in 2013 when Martha and Matthew Foster discovered images of themselves and their children, Delaney and James, in Arne Svenson’s photography exhibition The Neighbors mounted at the Julie Saul Gallery in the Chelsea district of Manhattan.2 The Fosters lived in a modern glass walled building—The Zinc—in northern TriBeCa.3 Arne Svenson lived across the street in a second floor loft at 125 Watts Street.4★ He used a telephoto lens equipped digital camera to take pictures of the Fosters and others living in The Zinc while staying in the shadows of his own abode.5 The Fosters sued Svenson and the Julie Saul Gallery, making privacy and intentional infliction of emotional distress claims.6 They sought damages and an injunction requiring removal of two pictures of their family from public and electronic display.7 “According to the Fosters,” Barbara Pollack wrote in ARTnews, “Svenson is nothing more than a Peeping Tom, invading their privacy and exploiting their profiles for commercial gain.”8 The Fosters lost their motion for preliminary relief in the trial court, a result recently affirmed on appeal.9

Most of the pictures in The Neighbors exhibition are, at least in the eyes of this viewer, aesthetically pleasing.10 The emotional responses of some of those in Svenson’s photographs, however, were understandably testy. The Fosters were not the only upset residents. Mariel Kravetz, also a resident of The Zinc, invited Jennifer Bain, a New York Post reporter, to come to her apartment in The Zinc building to snap pictures of Svenson’s abode across the street.11 Though Svenson was not visible during the photo shoot, a medical model in his window was.12★ A photo taken during Bain’s visit later appeared in the newspaper. She reported that Kravetz found the effort to be sweet revenge because Kravetz was “horrified” to find out that she appeared in two displayed photos in Svenson’s show. Kravetz was also concerned he took more pictures of daughter: “‘What does he have that we haven’t seen?’ Kravetz asked Bain. ‘He probably took thousands or more. I have a young daughter. It’s more than me. Does he have any of her? That’s my biggest concern.’”13

Svenson’s explanation of his actions—framed from a perspective denying the authenticity of any privacy claims—may have stoked the anger and anxiety of the Fosters and Kravetz. In a blog about The Neighbors exhibit published shortly before the show opened, he was quoted as saying:

For my subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high. The Neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs. I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within.14

The consequences of the dispute may be visible on-site. When I walked by the buildings on the afternoon of March 16, 2015, most of the window shades and curtains were drawn in the apartments facing Svenson’s. A peek at a Google Street View image of the same site in June, 2011, however, shows that many of the windows were uncovered.15 Whether that is a result of Svenson’s actions is impossible to know without speaking to the residents.16★ But it would hardly be surprising that some residents would respond by hiding themselves behind window coverings.17

This dispute raises a host of difficult social, cultural, and legal questions. All of the many friends and colleagues I chatted with about the Svenson exhibition expressed some form of anxiety, creepiness, or worry. But they also had difficulty articulating the basis for their concern. Some worried about the intrusive nature of such photography only to opine that it wasn’t very different from being on a street or in a subway when a professional camera wielder clicks off shots for a coming gallery show. Others wondered why their likenesses should be the source of funds to an artist before commenting that professional photographers must have a great deal of leeway in picking their subjects and deciding what to publicly display. Many wanted to know if the pictures revealed moments of sexual intimacy or nudity. When I said they did not18 and added my opinion that many of them were quite beautiful, the reaction often was, “hmmmmmm . . . .” A few articulated feelings of creepiness only to partially retract them by opining that New Yorkers expect to be watched in their apartments by all types of eyes when their shades are up or their curtains are open. In short, puzzlement and consternation were routine. This Article is a preliminary effort to unravel some of the perplexity. It is only fair to say at the outset, however, that firm, bright line resolutions are difficult to discern.

I begin with an historical journey. The first stop is the famous Warren and Brandeis article, The Right to Privacy, published a century and a quarter ago in the Harvard Law Review.19 The authors complained about the ways photographers and newspaper reporters “invaded the sacred precincts of private and domestic life” and overstepped “the obvious bounds of propriety and of decency.”20 The distant echoes of Warren and Brandeis’ lament resound in the protests made by Kravetz and the Fosters to Svenson’s The Neighbors exhibition. But almost one hundred twenty-five years passed between the publication of The Right to Privacy and the mounting of The Neighbors. Any inquiry into the legal cogency of the Foster claims therefore must venture into the ways photographic technology, artistic trends, and cultural changes have influenced the creative presentation of moments “appropriated” from the lives of strangers. That is the second stop in this Article’s journey. I conclude in the third and final part by using the historical inquiries as a baseline for thinking about the ways legal norms changed over the course of the last one hundred and twenty five years and for meditating on the wisdom of changing those norms again.

‡ A companion website for this Article containing images referred to in the text is located at http://www.rhchused.com/Moments.html [http://perma.cc/KL84-XEYD]. Footnotes that contain an image from this website will have a star (★) symbol next to the footnote reference number. Each page has links to the previous and next pages, allowing you to simply move through the site as you read. In general, pictures that this Article suggests create serious privacy issues—including those of the Fosters—are not on the website. However, links to places where they are shown are given at various points in the Article.

* Professor of Law, New York Law School. My thanks go to Bryan Choi, Ari Waldman and Jake Sherkow—faculty colleagues who joined with me every week over lunch for an informal “IP Salon.” Their comments as this project unfolded were invaluable. I also extend my deep appreciation to Ed Purcell of the New York Law School faculty, and to Girardeau Spann and Michael Seidman, my colleagues for many years at Georgetown University Law Center, for reading, thinking about, and commenting with deep wisdom on drafts of this Article. Finally, the wonderful group comprising the Family Law Scholars of New York City provided a range of superb comments at one of its regular monthly gatherings at Benjamin N. Cardozo School of Law on May 7, 2015.

As a resident of a fourteenth floor apartment across Broadway from two large residential buildings to the east, such thoughts certainly cross my mind.↩

See Pollack, supra note 2. TriBeCa (local parlance for “triangle below Canal Street,” even though the neighborhood’s shape is a trapezoid) is located in the southwest part of Manhattan just north of the Financial District. Much of it is now designated and controlled as historic. It is filled with old industrial loft buildings that have become some of the poshest apartments in the city. The Zinc is one of a number of recently constructed buildings erected on empty or non-historic parcels.↩

The emotional distress claim did not play much of a role in the first round of proceedings. The Fosters alleged intentional infliction of emotional distress as a cause of action in their complaint, dated May 20, 2013, as a result of the photographing and subsequent promotion of images of their children. See Complaint at 7–8, Foster v. Svenson, No. 651826/2013, 2013 WL 3989038 (N.Y. Sup. Ct. Aug. 5, 2013). In the Memorandum the Fosters filed in support of their motion to enjoin Svenson’s actions, they argued that Svenson violated various New York civil and criminal statutes, but they did not mention the emotional distress claim. See Plaintiffs’ Memorandum of Law in Support of Temporary Restraining Order and Motion for Preliminary Injunction at 6–11, Foster, 2013 WL 3989038 (No. 651826/2013). They mentioned statutes barring unlawful surveillance (N.Y. Penal Law § 250.45(1), (3) (McKinney 2014)); child endangerment (Penal § 260.10(1)); and violation of publicity rights (N.Y. Civ. Rights Law §§ 50, 51 (McKinney 2014)). See Plaintiffs’ Memorandum of Law, supra, at 1, 6–7. The defendant’s response, filed in early June, paid scant attention to the emotional distress claim. See Defendant’s Memorandum of Law in Support of His Motion to Dismiss and in Opposition to Plaintiff’s Motion for Preliminary Injunction at 19–22, Foster, 2013 WL 3989038 (No. 651826/2013). That makes sense. There is scant, if any, evidence that the level of intentionality and grievous emotional impact required to win this sort of tort claim was present. This Article deals only with the privacy issues.↩

Bain, supra note 11. During the trial court proceedings, Svenson indicated that he may have had about fifty pictures of the Foster apartment, though it later turned out that probably was an overestimate.↩

Gorence, supra note 4. In a later interview after the litigation was filed, Svenson gave a similar, though somewhat less intrusive explanation, for his actions:

I shot for the tiny nuances of gesture and posture that define who we are, collectively. The subjects are to be seen as representations of humankind, non-identifiable as the actual people photographed. I was also intrigued by the way light struck the building/glass, how it diffused and flattened the subjects within, giving the photographs a unique palette and an almost painterly presence.

I have not been successful in obtaining interviews with anyone. An image with most of the shades down on the lower floors of the Zinc Building is available at Richard H. Chused, Zinc Apartment Shades Down, Appropriate(d) Moments, http://www.rhchused.com/Moments03.html [http://perma.cc/V5NV-ZEFF] (last visited Sept. 28, 2015).↩

If that is happening it is a bit ironic, for some of the larger units in The Zinc are quite expensive. It is difficult to imagine that someone spending a large sum for a bright, airy apartment would be pleased when “forced” to lower their shades. According to StreetEasy, a two-bedroom, 1,675 square-foot apartment sold for $3,180,000 in January, 2015. The Zinc Building at 475 Greenwich Street, StreetEasy, http://streeteasy.com/‌building/the-zinc-building#tab_building_detail=2 [http://perma.cc/9SNK-5UTF] (last visited Sept. 28, 2015).↩

Though, other forms of intimacy are visible. In one picture, what appear to be a man and woman sit across from each other with their legs on the same footrest. Svenson, supra note 2, at Neighbors #1. They are dressed in robes and the lower parts of their legs (but no upper bodies or faces) are displayed. In another, an obviously pregnant woman sits on the back of a sofa, again without her face showing. Svenson, supra note 2, at Neighbors #8. A third shows the clothed rear end of what appears to be a woman, apparently cleaning a floor. Svenson, supra note 2, at Neighbors #5. In one of the pictures the Fosters complained about, Martha is holding her son upside down. His face is right in front of the Foster’s daughter who is dressed in a child’s swimsuit. Many others also display intimate, wholly non-sexual, moments.↩